Federal Appeals Court Reverses Order on ELLs in Texas

This just in: A federal appeals court has reversed a July 2008 ruling by a U.S district court that Texas must revamp its programs for secondary English-language learners because they violate federal law. The appeals court disagreed with lawyers of the G.I. Forum and the League of United Latin American Citizens that the Texas Education Agency had failed to take what federal law calls "appropriate action" to overcome language barriers of students learning English. It also disputed the plaintiffs' claim that the TEA had not been responsible in monitoring programs for such students. (I last blogged about this court case about a year ago.)

At the same time, the U.S. Court of Appeals for the Fifth Circuit encouraged the G.I. Forum and LULAC to add several individual school districts to the case so it can proceed. "By adding individual districts, the court can better examine the circumstances of specific students, schools, and districts, which will be invaluable evidence for determining the cause of [limited-English-proficient] student failure and how best to remedy it," the appeals court decision says. The decision also says that the court doesn't dispute the fact that secondary ELL student performance data is "alarming." It says the data shows an achievement gap of 35 to 45 percent in comparison with other students, and little evidence shows that the gap is decreasing.

Much of the appeals court ruling discusses the challenge of effectively measuring whether an ELL program works or not.

Before the July district court ruling, the plaintiffs in the case had criticized the state's system for monitoring the progress of ELLs, saying, for example, that aggregation of data at the school district level prevents intervention in schools that aren't performing as well as their districts overall. The appeals court points out that it's the job of schools to educate ELLs and the TEA is responsible for intervening in failing districts, not schools. On remand, says the federal appeals court ruling, the district court should reconsider the evidence in the case to properly determine if the state's data system and other sources of information are effective in monitoring ELL programs and thus protecting the civil rights of English-language learners.

Judge William Wayne Justice, a judge for the U.S. District Court for the Eastern District of Texas, whose 2008 ruling said that the inadequacy of Texas secondary ELL programs violated the Equal Educational Opportunities Act of 1974, died in October. He was the same judge who had ruled decades earlier that undocumented students are entitled to a free K-12 education in this country, which led to the 1982 U.S. Supreme Court decision, Plyler v. Doe.

Roger Rice, a lawyer for the plaintiffs in the recent Texas case, said he and the other lawyers involved are seriously looking at the appeals court's encouragement to bring individual school districts into the case. "TEA doesn't teach kids," he said. But he added, "If the design of the secondary program, which is statewide, is failing, it seems to me to be a statewide question."

He said that because of Judge Justice's death, Rice and his colleagues will likely have to start from square one in educating the district court about the education of ELLs. "The first day, we'll talk about what does bilingual education mean, what does ELL mean. There will be a getting up to speed."

Rice also noted that the lawyers for the plaintiffs will have five years' worth of state data, rather than just the two years' worth that they presented back in 2006, to make the case that ELL programs need to be overhauled.

Update: Debbie Ratcliffe, a spokeswoman for the TEA, said in an e-mail: "We are pleased with the court's ruling, which affirmed many of the points we had argued in court. Texas has a very successful bilingual program at the early grades. Like other states, the track record is more mixed with older students who come into Texas classrooms later in their school career. These students are not only trying to learn English but the language used in complex science and math courses."

She added: "We believe our monitoring system, which was in its infancy at the time of the court trial, will prove effective."

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